ByCaleb Mason |January 14, 2016

The coming year should be a good one for continuing criminal-justice reform in California. For one thing, the prison population is falling, for the first time in recent memory. Proposition 47 (which makes simple possession of any drug a misdemeanor—and which acts retroactively to reduce the sentences of those previously convicted) is gradually removing possession-only offenders from the state prisons, where most drug-policy experts and an increasing number of law-enforcement officials agree they shouldn’t have been in the first place.

And this tectonic policy shift has not, contrary to some alarmist prognostications, driven up crime rates. (The first detailed study of recidivism among inmates released under Prop 47, released in November by Stanford researchers, shows a rate of less than 5 percent.)

Moreover, things are getting better inside California’s prisons as well. For example, the prison system has drastically reduced and overhauled its once-widespread “contraband watch” policies, under which inmates thought to have swallowed contraband would be shackled hand- and-foot and chained to an iron cot under bright lights under constant observation until they produced three bowel movements.

Under such circumstances, that sometimes took awhile—I had a client years ago who was held for almost a full week in a six-by-eight cell, chained to an iron cot by an ankle chain, with his hands cuffed to a waist chain, and duct-taped (at the wrists, ankles, and neck) into two jumpsuits. He was unable to sleep on bare metal under the constant bright lights, and he was unable to eat because the guards refused to free his hands, instead putting trays of food on the floor and forcing him to each with his face in the tray like a dog.

That’s torture.

But in a deeply disappointing decision authored by Judge Jay Bybee (who prior to his appointment to the bench was the author of the “torture memos” that authorized similar treatment for CIA black-site detainees), the court ruled that the guards were entitled to qualified immunity, because the law was not sufficiently clear to put them on notice that what they were doing was illegal.

But sometimes, even when the courts won’t intervene, state officials do the right thing anyway, and voluntarily renounce a policy despite winning in the courts. The case got the attention of officials at the Department of Corrections and Rehabilitation, who finally issued comprehensive regulations that, while not abolishing contraband watch entirely, will at least ensure that it doesn’t turn into torture or become an easy vehicle for retaliation against prisoners, as was often alleged. (There are now strict time limits, and rules requiring periodic loosening of restraints, dimming of lighting, medical monitoring, and personal supervision and authorization by prison command staff.)

The development I’d like to highlight in this column involves the interaction of prison “good-time credit” and the Ex Post Facto Clause of the Constitution (Article I, Paragraph 10 “No State shall… pass any… ex post facto Law.”)

Here’s how they fit together. The Ex Post Facto Clause says the government can’t retroactively make conduct criminal, or retroactively increase the penalty for criminal conduct. “Good-time credit” is a reduction in sentence length that inmates earn based on time served without any disciplinary issues.

In California, general population inmates get “one to one” good-time credit, meaning that for each problem-free day they serve, their sentence is reduced by one day. So best case, if you keep your head down, is to cut your sentence in half. Until 2010, inmates in Security Housing Units (SHU) (what many places call Ad Seg), got “three to one” credit, meaning one day off their sentences for each three days served.

Then, in response to the very real problem of gang-related violence in the prison system, the legislature changed the Penal Code to take away all good-time credit for any inmates put in the SHU after being “validated” by prison officials as gang members. “Validated” means that prison officials believe the inmate’s associated with a gang; and the criteria for validation are both capacious and malleable.

Starting on January 25, 2010, “validated” gang members (who were all sent to the SHU) got no more good-time credit whatsoever. So, say you went to prison in January 2004 on a ten-year sentence. As of January 2010, you had four years left on your sentence. Then you get validated. Prior to the amendment, you’d have done three years in the SHU and been out. But because of the amendment, you now have an extra year to serve.

So what’s your intuition? Can the legislature do that? I’ve talked to a lot of people about this issue since 2010, and I’ve found that many people begin with the intuition that a change in the calculation of good-time credit (leaving aside the merits of the gang “validation” system itself—which are dubious) is qualitatively different from a change in the underlying punishment attached to a particular crime.

Not so. The good-time credit entitlement formula is part of the sentence, ruled the Ninth Circuit in Hinojosa v. Davey, and it can’t be changed retroactively any more than the ultimate sentence length can.

In Hinojosa, the Ninth Circuit held the changes to the good-time regime unconstitutional as applied to all inmates who committed their offenses prior to the amendment. The court’s reasoning is clear and direct: A person is constitutionally entitled to know—at the time he commits his criminal offense—what the maximum possible sentence for that offense is going to be. And that constitutional entitlement includes the formula for earning good-time credits during the sentence. That is, prior to the 2010 amendments, a potential criminal contemplating his crime (this is the hypothetical scenario we use for ex post facto analyses) would know that his sentence exposure was the statutory max term, minus one-to-one credit for gen-pop time, or three-to-one credit for SHU time. And he had a constitutional right to those predictions remaining stable throughout his sentence.

Such predictability is of both constitutional and practical import.

The court quotes from a 1981 Supreme Court case, Weaver v. Graham, which explained that “a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed,” and that a new law that retroactively “constricts the inmate’s opportunity to earn early release… makes more onerous the punishment for crimes committed before its enactment”—which the Ex Post Facto Clause forbids.

Hinojosa has had an immediate effect. The state, rather than petulantly force every single validated prisoner to file his own individual habeas petition, began the process of going through its records and awarding back good-time credits. I know they’re doing it because I have a former client who, after Hinojosa came out, was given back three years of good-time credit, and then released.

I don’t know how many other inmates have yet been released under Hinojosa, or how much time and effort the CDCR is devoting to good-time credit reviews. But it should hustle: Prison officials have qualified immunity against damages suits for stripping good-time credit for gang-validated inmates—but only up until September 25, 2015, when the decision was issued. Since then the state has been on unambiguous notice that the practice is illegal, so wardens are fully open to damages suits.

Inmates released late could sue for damages for every day they were unconstitutionally held over. (Note– below) And there wouldn’t be any defense on the merits; the only defense would be that officials were doing their best to comply, but just couldn’t get to everyone fast enough. And that defense is fading: we’re now three months on from the ruling, and some simple math shows real potential exposure if the state is dragging its feet. If a thousand prisoners were held an average of a hundred days too long, then at a very conservative $100 dollar-a-day valuation per person, that’s ten million dollars in damages.

Let me anticipate the objection: Releasing “validated gang members” is a lot more dangerous than releasing possession-only drug offenders, right? Here’s my answer: First: I’d be a lot more worried if the “validation” standards weren’t so capricious and so extraordinarily easy to meet, with so little administrative oversight or judicial review. From the fact that an inmate has been “validated,” it does not follow that he will take up a life of gangbanging upon release. I hope and expect that the CDCR and academic researchers track the recidivism rates of Hinojosa releases, so we can get some data.

Second: Hinojosa (unlike Prop 47) is not shortening anyone’s sentence or releasing anyone “early”; rather, it’s restoring the sentences they actually received, and releasing them on their actualrelease dates. And that’s nothing to complain about, not in a society based on the rule of law.

(Note: Another complication arises because of a case called Heck v. Humphrey, which I’ll be happy to discuss further in the comments. Under Heck, prisoners wouldn’t be able to sue for money damages on this theory until after their release. Prior to their release, their only option is habeas, and the only remedy in habeas is release—not money.)

Caleb Mason is an attorney at Brown, White and Newhouse in Los Angeles, and a former federal prosecutor. He welcomes readers’ comments.

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